My Gender, Your Decision: Determination of Gender Identity in the UK﻿

By Alice GouldBetween July 3rd 2018 and October 22nd 2018 the UK Government ran a public consultation in England and Wales into the 2004 Gender Recognition Act (GRA). Whilst the GRA and the Civil Partnership Act (also of 2004) were revolutionary at the time, 14 years later our concepts of gender, sexuality, and LGBT norms have significantly changed. Although England, Wales, and Scotland recognised same-sex marriage (with Northern Ireland lagging behind) in 2013, gender recognition has lacked any substantial reform.

There are many problems with the GRA, but this blog will focus on
the issue of determination of gender. For a British person to gain a Gender
Recognition Certificate, amongst other conditions, they must be diagnosed by a
doctor as having gender identity disorder. Despite the fact that both the UK
Government and the World Health Organisation have stated that being trans is
not a mental illness, it is still treated as if it is. Requiring a doctor to ‘diagnose’
gender identity disorder not only enforces this outmoded view which is an
affront to the dignity of trans persons, it incorporates it into law.

One of the positive aspects of the GRA is that it does not require
any gender reassignment treatment (such as surgery or hormones) to have been
started or even prescribed by a doctor – though this can be used as supporting
evidence. This shows that even in 2004, the British legal system was moving
away from the outmoded concept of equating the physical body with gender. But
it still shies away from granting a trans person self-determination of gender.

“To gain a Gender Recognition, trans persons in the UK must be diagnosed by a doctor as having gender identity disorder.”

Additional problems with the current status of determination of
gender in the UK relate to the lack of mechanism for the recognition of
non-binary identities. Whilst even facebook manages to include 71 gender
options, UK law (and the vast majority of countries) operates exclusively with
the options of male or female. These options do not reflect the diverse range
of genders experienced by non-binary people, who are being forced to choose a
gender they do not identify with. The UK is legally misgendering a multitude of
people.

The fact that the GRA is not an effective mechanism can be seen in
figures. It is challenging to assess how many trans people currently live
in the UK, but the Government Equalities Office tentatively estimates around
200,000-500,000. In contrast, only 4,910 Gender Recognition Certificates have
been issued since 2014. There are many reasons for this, yet most revolve
around the costly and degrading bureaucracy surrounding gender assessment. As
the government states within the consultation: “We want to make it easier
for trans people to achieve legal recognition, and that is why we are
consulting on the best way to achieve this.”

So what is the best option when it comes to determining gender?
Whilst the UK has continued to focus on medicalisation and a doctor’s
diagnosis, many countries both in Europe and outside of it, officially
recognise that self-determination is the best method for the recognition of
non-binary genders. The Women and Equalities Committee in 2016 recommended that
“In place of the present medicalised, quasi-judicial application
process, an administrative process must be developed, centred on the
wishes of the individual applicant, rather than on intensive analysis
by doctors and lawyers.” Ultimately, according to both government
experts and trans persons themselves, self-determination would be a more
conducive method for the trans persons in question and would streamline a pointlessly,
expensively bureaucratic process.

“Self-determination would be a more conducive method for trans persons to legally recognise gender.”

Of course, within our cisgendered and heteronormative society, it
is not as simple as just allowing people to have a say in their own lives.
Critics have been very vocal in their condemnations of self-determination. The
most commonly heard criticism comes from those who believe that every Tom, Dick
and Harry (or should that be Tina, Deborah and Helen?) would arbitrarily change
their gender in order to choose whatever sex would make their life easier.
Surely, if people have the right to self-determination men will say that they
are women in order to join safer prisons? Won’t people use opposite-sex
bathrooms to prey on people within them? Surely male athletes will say they are
female in order to stack the odds in their favour?

There are many examples that show that this is not the case. To
begin with, even if changing one’s gender is a matter of self-determination, it
is a permanent legal change and not something that can be flicked between on a
daily basis whenever convenient. Secondly, many of these issues are already in
place, even without legal guidance: bathrooms do not require a Gender
Recognition Certificate to enter and trans persons already live in
gender-appropriate prisons with few problems. Thirdly, as mentioned above,
several other countries have codified self-determination of gender and are yet
to crash and burn into a misgendered hell-hole.

Overall, when it was first created the GRA was a forward-looking and transformative legal document. However, the GRA needs to be updated to fit with today’s concept of gender. The UK as a whole needs to make sure that gender is determined by each individual themselves, and no longer promote the false and offensive concept that being trans is a mental illness that needs a doctor’s diagnosis. Trans people know who they are, and should be able to declare this themselves.

Alice studied her undergraduate degree in Law with European Law at the University of Nottingham in the UK with her Eramus in Lund University in Sweden. Since graduating in 2016 she has worked in a death penalty clinic in the US, an educational human rights NGO in Georgia and as an English teacher in China. Her interests include LGBTI and gender rights.